Chamber and committees

If I may, I will give an example, because this is why I think that your amendment would create a proportionate approach. We heard the example of changing the requirement for EIA reports to be electronic only, rather than on paper, for reasons of efficiency. That would be an administrative change, but I think that using the affirmative procedure for that change would be disproportionate. I do not run the committee, and the committee might believe that it is appropriate for all minor and technical changes to be subject to the affirmative procedure and, therefore, scrutiny in committee. That is entirely up to the committee. Personally, as a parliamentarian and a former convener, I would see that as taking up an awful lot of time, and the committee’s time could be better spent. It is up to the committee to decide whether it wants that.

I have not finished.

The continuity act was also mentioned as a way of keeping pace with EU law, but it provides for a narrower power that does not give us the flexibility to respond to the wider international obligations or domestic needs. I believe that we need to put something in the bill that puts those protections in place. That is why I am happy with Alasdair Allan’s amendments, which I think do that. We must recognise that some of the existing regulations do not quite hit the mark.

I will take it in a second. The wording of the definition that is provided in amendment 60 is also problematic because it would apply to native and non-native conifers. It would also apply not only in commercial contexts but to any “other purposes”. That means that the definition could apply to projects that seek to restore fragile Caledonian pinewoods. Therefore, the amendment is disproportionate and the definition too broad. There could be unintended consequences, which, as I have just outlined, was the result in Ireland.

I will start by expressing my agreement with Dr Allan’s earlier remarks and urging the committee to support his amendments, which we worked on together.

Dr Allan’s amendments 115 to 117 are designed to alleviate concerns by including an environmental protection requirement in part 2 of the bill and narrowing the scope of the purpose set out in section 3(c). His amendment 121 seeks to narrow the scope of the purpose set out in section 3(f).

I put on record—I think that I also reflected this in the evidence at stage 1—that I agree that we need to ensure that any legislation is not vulnerable to being misused by any future Government that does not have biodiversity or climate goals in its sights or that does not agree with them. I am happy to see that a lot of work has been done by various members on that. I do not agree with deleting part 2 of the bill, but I am absolutely convinced that Dr Allan’s amendments are a significant step towards having a safeguard put in place, and Scottish Environment LINK has expressed that they are a significant step forward.

I will now turn to other amendments in the group. Although I recognise the attempts that members have made to introduce non-regression clauses and agree with the intention behind that, the amendments that Dr Allan has lodged are those that I feel achieve the objectives in a way that I can stand beside.

Ms Boyack’s amendments 5 and 6, Ms Wishart’s amendment 196 and Mr Eagle’s amendment 313 all seek to introduce a non-regression provision to part 2 of the bill. They respond directly to the understandable concerns that stakeholders and the committee raised about the need for a non-regression provision. Of course, we need to decide which non-regression provision members might want to get behind and support.

The breadth of the power and the absence of safeguards in part 2 of the bill were mentioned in the stage 1 debate. We need safeguards—I hope that members recognise that I agree with everyone on that. The Government shares the ambition to uphold high environmental standards. However, a non-regression provision amendment needs to offer a clearer, more workable safeguard that supports our ambitions for both nature restoration and climate change. I do not agree that one has priority over the other—they are inextricably linked and have parity, as far as I am concerned.

As a non-regression provision would introduce legal obligation, the Government believes that any provision needs to be proportionate and a workable safeguard that strikes a balance between maintaining flexibility and ensuring accountability.

I am not entirely sure that I understand the question. I have just set out how regulation 9D does not give us the flexibility to adapt to situations that require that flexibility and fleet-of-foot reaction. I am confident that the adoption of Alasdair Allan’s amendments would allay any concerns about not having non-regression safeguards in the bill.

I set out at stage 1 many of the reasons why we could not have a static situation. For example, we could have protected areas that no longer protect the species that they were originally set up to protect, because of the effects of climate change on that species. We need to have a more fleet-of-foot response available. I also point to Emma Harper’s amendment in relation to the affirmative procedure being used for substantive amendments and changes, which is also right.

The suite of amendments from Alasdair Allan and Emma Harper should allay a lot of the difficulties that people had at stage 1.

There is a risk that that might create pressure to protect other introduced species. The key point that Rachael Hamilton is missing is that that could weaken Scotland’s invasive species management framework, when we are all aware of the impact that non-native invasive species can have on our indigenous and native wildlife. It could also complicate future decisions on species control and erode consistency in biodiversity policy, which could have a really serious effect. I believe that local management agreements are a far better and more flexible alternative to rigid statutory protection in the particular case that Rachael Hamilton raises.

Finally—as everyone will be pleased to hear—on amendments 291 to 293, Scotland already invests heavily in red squirrel conservation through the Scottish squirrel group. That programme delivers grey squirrel control, squirrel pox monitoring, habitat restoration and community engagement, and is supported by more than £1 million from the nature restoration fund. There is a risk that additional statutory reviews and awareness campaigns would duplicate that work, create unnecessary costs and divert resources away from practical action that I think we all agree is absolutely necessary.

I do not think that any of us wants to see any reduction in funding for that practical action in order to pay for bureaucratic exercises when measures are already available.

I will take Rachael Hamilton’s intervention now.

I do not think that you are.

Mr Fairlie’s amendment speaks for itself and members can judge whether to support it. I have laid out the reasoning for the amendment. As all ministers do when we are making legislation, Mr Fairlie consulted Scottish Government legal advisers. He lodged the amendment. I stand by that; there is collective responsibility.

My fellow bill ministers and I are aware of the concerns that have been raised about the release of non-native game birds, and we understand the intention behind amendment 40. However, I must be clear that, as drafted, the amendment will have no effect. It will not revive the provisions that were removed by the Wildlife and Natural Environment (Scotland) Act 2011. I therefore encourage the committee to reject amendment 40.

Amendment 41, in the name of Mark Ruskell, recognises the desire to promote biodiversity to new development across Scotland. I am sympathetic to that, as somebody who cares very much about the migrant population of swifts that comes to Aberdeenshire every year. I encourage members to visit Portsoy, which has a cliff face with a number of holes that the swifts can be seen going into and out of, feeding their young. It is a natural wonder.

However, amendment 41 is not necessary. Scottish ministers already have powers to introduce regulation to effect such change. Securing positive effects for biodiversity is already one of the six statutory outcomes in national planning framework 4, which was published in 2023. Relevant policies are underpinned by NatureScot guidance, which include recommended measures that new development can take to enhance biodiversity, such as by providing homes for small birds.

We must, however, take into account the primary aims of building regulations, which focus on health and safety and building performance. The proposed change could affect factors that need detailed consideration. Officials have indicated that the matter could be considered as part of a future review of standard 7.1 of the building regulations. Given the importance of following due process on matters that concern the design and fabric of new buildings, it is only right that such matters be considered in a comprehensive and meaningful way and in collaboration with key stakeholders involved in the delivery of our built environment. For those reasons, I ask Mark Ruskell not to move amendment 41. He might want to investigate what I have just put to him with regard to the advice that we have been given on the issue.

With all due respect, Mr Carson, I do not think that you can relate what Mark Ruskell is trying to do to another amendment. I am saying that securing positive effects for biodiversity is already one of the six statutory outcomes in NPF4. Officials have advised me to pass on to the committee and to Mr Ruskell the information that what he wishes to do with amendment 41 can be achieved through building regulations. Further, they have advised the matter could be reviewed, allowing the proposal to come into effect if the right consultation with stakeholders, due diligence and evidence gathering were undertaken.

On amendment 157, the legislation is clear that birds of prey can still be used to take mountain hares for other purposes when that is carried out under a licence granted by NatureScot. I will give Murdo Fraser a bit of detail on that. Licences have been issued as recently as this year. Mountain hares are a protected species in Scotland because of concerns about their population. We appreciate that there are many occasions when falconers and birds might take non-target species, such as mountain hares, when they have been legitimately hunting other species such as red grouse. Provided that that was not done intentionally or recklessly, it would be unlikely to be considered an offence.

Furthermore, as drafted, the amendment goes much further than allowing the taking of mountain hares for the purpose of falconry. It would permit any species listed in schedules 5, 5A or 6A to the Wildlife and Countryside Act 1981 to be taken for the purposes of falconry, which could include grass snakes and water voles. I stress, however, that if mountain hares are taken unintentionally, it is unlikely to be considered an offence.